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Justice delays health law's birth control mandate

Jesse J. Holland | AP

Supreme Court Justice Sonia Sotomayor speaks with KPCC's Patt Morrison at the Crawford Family Forum on January 25, 2013. Sotomayor made a last-minute decision to block implementation of the contraceptive coverage requirement of President Obama's health care law. Grant Slater/KPCC

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The Supreme Court has thrown a hitch into President Barack Obama's new health care law by blocking a requirement that some religion-affiliated organizations provide health insurance that includes birth control.

Justice Sonia Sotomayor late Tuesday night decided to block implementation of the contraceptive coverage requirement, only hours before the law's insurance coverage went into effect on New Year's Day.

Her decision, which came after federal court filings by Catholic-affiliated groups from around the nation in hopes of delaying the requirements, throws a part of the president's signature law into temporary disarray. At least one federal appeals court agreed with Sotomayor, issuing its own stay against part of the Affordable Care Act, also known as Obamacare.

The White House on Wednesday issued a statement saying that the administration is confident that its rules "strike the balance of providing women with free contraceptive coverage while preventing non-profit religious organizations with religious objections to contraceptive coverage from having to contract, arrange, pay, or refer for such coverage."

Sotomayor acted on a request from an organization of Catholic nuns in Denver, the Little Sisters of the Poor Home for the Aged. Its request for an emergency stay had been denied earlier in the day by a federal appeals court.

The government is "temporarily enjoined from enforcing against applicants the contraceptive coverage requirements imposed by the Patient Protection and Affordable Care Act," Sotomayor said in the order.

Sotomayor, who was in New York Tuesday night to lead the final 60-second countdown and push the ceremonial button to signal the descent of the Times Square New Year's Eve ball, gave government officials until 10 a.m. EST Friday to respond to her order. A decision on whether to make the temporary injunction permanent or dissolve it likely won't be made before then.

"The government has lots of ways to deliver contraceptives to people," said Mark Rienzi, a lawyer for the nuns. "It doesn't need to force nuns to participate."

Under the health care law, most health insurance plans have to cover all FDA-approved contraceptives as preventive care for women. That means the coverage is provided free of charge.

Churches and other houses of worship are exempt from the birth control requirement, but affiliated institutions that serve the general public are not. That includes charitable organizations, universities and hospitals.

The requirement prompted an outcry from religious groups, which led the administration to try to craft a compromise. Under that compromise, insurers or health plan administrators must provide birth control coverage, and the religious institution itself is not responsible.

But the administration's compromise did not satisfy some critics, who called it a fig leaf.

The nuns would have to sign a form authorizing their insurance company to provide contraceptive coverage, which would still violate their beliefs, Rienzi said.

"Without an emergency injunction, Mother Provincial Loraine Marie Maguire has to decide between two courses of action: (a) sign and submit a self-certification form, thereby violating her religious beliefs; or (b) refuse to sign the form and pay ruinous fines," Rienzi said.

The Little Sisters operate homes for the elderly poor in the United States and around the world. They were joined in their lawsuit by religious health benefit providers, Christian Brothers Services and Christian Brothers Employee Benefits Trust.

Sotomayor's decision to delay the contraceptive portion of the law was joined by the U.S. Court of Appeals for the District of Columbia Circuit, which also issued an emergency stay for Catholic-affiliated groups challenging the contraceptive provision, including the Archdiocese of Washington, D.C., and Catholic University.

But one judge on the three-judge panel that made the decision, Judge David S. Tatel, said he would have denied their motion.

"Because I believe that appellants are unlikely to prevail on their claim that the challenged provision imposes a 'substantial burden' under the Religious Freedom Restoration Act, I would deny their application for an injunction pending appeal," Tatel said.

The archdiocese praised the appeals court's action in a statement.

"This action by the U.S. Court of Appeals for the D.C. Circuit is in line with the rulings of courts all across the country which have held that the HHS mandate imposes a substantial and impermissible burden on the free exercise of religion," the archdiocese said. "These decisions also vindicate the pledge of the U.S. Catholic bishops to stand united in resolute defense of the first and most sacred freedom — religious liberty."

The Supreme Court already has decided to rule on whether businesses may use religious objections to escape a requirement to cover birth control for employees. That case, which involves Hobby Lobby Inc., an Oklahoma City-based arts and crafts chain with 13,000 full-time employees, is expected to be argued in March and decided by summer.